June 06, 2005

Establishment Claus: Right as Raich

by Guest Contributor

Like Ann Althouse, I disagree with J and Balko - I don't think there's anything wrong with Justice Scalia's concurrence from a logical federalist perspective. As she writes, Commerce Clause jurisprudence is probably best conceptualized as dependent upon "whether the regulated intrastate activity is part of a connected web of interstate activity." It's pretty clear that legalizing any marijuana risks having a significant impact on the interstate market, or at least clear enough to provide a rational basis. Lines like David Bernstein's just ain't fair.

As far as Radley's rant goes, he's about half right. A balancing test in a gun rights case would pretty obviously be a little different, since the individual's claim to the right to own a gun is much stronger than his claim to the right to own pot. But that's not even relevant to the Lopez issue, since what Congress was trying to deal with was violence in schools rather than the gun trade. As Ann points out, that's not a problem that needs a holistic solution. Violence in schools is a pattern, not a web - a string of facially similar events, not a connected market. Tough school area gun laws in Harlem don't undermine laws that let Vermonters carry guns to school to fight off the bears they'll meet on their way. Marijuana simply doesn't work the same way, so the analogy doesn't hold.

June 6, 2005 08:10 PM | TrackBack

First off, I think some assumptions are being made here. Is it really so undisputable that marijuana prices in Iowa affect those in New York? Could I not argue that tough gun laws near schools in Harlem serve to lower demand for the entire gun market? Is this any better than the interconnected argument made for marijuana?

Secondly, isn't this just an affirmation of Wickard, as Balko suggests? From a logical-federalist point of view, Wickard is a bad decision. Once we assume that decision is fine, it's easy to do so with a lot of things. It's as if you were to begin a conversation on abortion - starting from the assumption that Roe v. Wade was absolutely great and should not be overturned.

Posted by: J at June 7, 2005 10:07 AM


Actually, I think you're the one making assumptions - for starters that Wickard is wrongly decided (I don't cite it in my text, and I don't think Scalia's opinion is dependent on it, even if he does cite it approvingly). The only 'assumption' you can accuse me of making is about the marijuana market - but that's how rational-basis scrutiny works, courts are broadly deferential to the legislature on factual issues.

Basic Con Law 2 stuff - come on, you're a 3L.

Posted by: Establishment Claus at June 7, 2005 07:07 PM

The Wickard decision is to federalists/libertarians what Roe v. Wade is to pro-lifers.

As far as rational basis goes - would a finding by the legislature on the gun market in Lopez have altered the decision? Also, did the legislature even make such a finding on legislature here in Raich? - I have no idea.

And also, I didn't take Con Law II, and don't plan on it. Class seems dumb, and the professor's a douchebag. No offense to any Con Law II profs out there, I'm sure I'm not at your school.

Posted by: J at June 13, 2005 03:19 PM
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